The Power of South African Courts to Order Scientific Tests to Determine the Paternity of a Child: Highlighting the Existing Gaps

Abstract

Legislative reticence on the issue of compelling an unwilling or uncooperative parent and child to submit themselves for scientific test to determine the paternity of a child has sparked plenty of controversial approaches by the judiciary of South Africa: the designated authority as upper guardian of all children in the Republic. While the notion of ‘best interest of the child’ is factored in when making this determination, some courts have held that they lack such a power to make an order of that nature. Others have entertained the view that it might not be in the best interest of the child, especially when it is likely that the results of the test may prove that the alleged father is not the biological father and financial obligations may cease in this regard. In the view of another high court, discovery of the truth is also in the best interest of the child and as such the court may order such scientific tests as may be necessary. This article explores the legislative silence on the issue of ordering scientific tests. It examines the different cases in which various high courts took a different reasoning, at the end of which inconsistencies, controversies and uncertainties became the unfortunate outcome. In order to resolve this legal puzzle, especially at a time when the integrity of mothers seems to be questionable, and considering the huge financial implication it may have on those who have to pay financial support for children, the high courts may need to provide more consistency in their approach to the issue of ordering parents and children to undertake scientific tests to establish paternity. In addition, legislative reform may be needed to lay this dilemma to eternal rest.